Summary:

Mr. Davis was employed at Nordock Inc. from July 28, 2010 till May 20, 2011 when his employment was terminated. Prior to his termination, Mr. Davis broke his ankle. This injury required Mr. Davis to be absent from work for several weeks. Mr. Davis supplied his employer with medical documentation relating to this absence. In addition, Mr. Davis required time off work to attend medical appointments relating to his hypothyroidism. Mr. Davis claims that the Plant Manager, Gerry Stretch, was aware of his medical condition and was fine with Mr. Davis missing work to attend medical appointments. Ultimately, Mr. Davis alleges that his employment with Nordock Inc. was terminated due his disability. Mr. Stretch, the respondent, denies these allegations and states that Mr. Davis’ employment was terminated due to excessive and unexcused tardiness and absences. Mr. Stretch maintains that Mr. Davis’ employment was not terminated because of his disability. In this case it was found that Mr. Davis was subject to discrimination on the bases of disability when his employment was terminated.

Question(s) to be Determined:

1. Does the applicant, Jared Davis, have a disability within the meaning of the Code?

2. Was the applicant, Jared Davis, subjected to discrimination on the basis of disability when his employment was terminated?

Findings:

1. Does the applicant, Jared Davis, have a disability within the meaning of the Code?

YES

2. Was the applicant, Jared Davis, subjected to discrimination on the basis of disability when his employment was terminated?

YES

Reasoning:

1. In this case Mr. Davis states that he broke his ankle on November 9, 2010. Mr. Davis was unable to work for several weeks as a result of his broken ankle. Mr. Davis also has hypothyroidism. As a result of his hypothyroidism Mr. Davis needed time off work for blood work. “In the circumstances, I am satisfied that both the applicant’s broken ankle, which caused him to be absent from work for several weeks, and his hypothyroidism, which required him to attend medical appointments on a regular basis, are disabilities within the meaning of the Code” (para 48).

2. According to Mr. Davis, his employer, Nordock Inc. was aware that he required time off work for blood work related to hypothyroidism. Mr. Davis claimed that his lateness and absences were related to his hypothyroidism which he disclosed to his employer. Mr. Davis alleged that his employment was ultimately terminated because of his lateness and absences related to his disability, hypothyroidism. According to Mr. Stretch, Mr. Davis’ employment was terminated due to “excessive unexcused tardiness and absences, not related to disability, and abandoning his work station during company time” (para 67). In this case it was found that “the applicant required time off work to attend medical appointments due to a disability within the meaning of the Code, and that he advised his employer. I find that the applicant’s absences to attend medical appointments related to his hypothyroidism were nevertheless a factor in the decision to terminate his employment. I find therefore that the applicant was subjected to discrimination, contrary to the Code, when his employment was terminated by Mr. Stretch on May 20, 2011. I also find the respondents, Nordock Inc. and Gerry Stretch, to be jointly and severally liable for the violation of the Code” (para 69).

Remedies:

In this case Mr. Davis sought monetary compensation, including lost wages, compensation for emotional and financial stress and human rights training for Nordock’s supervisors and managers.

Monetary compensation for lost wages – It was found that Mr. Nordock did not attempt to mitigate his losses, after being terminated, by seeking alternate employment. Based on this lack of mitigation, no compensation was awarded for lost income.

Monetary compensation for emotional and financial stress (injury to dignity, feelings and self-respect) - Citing O’Brien v. Organic Bakery Works Inc., 2012 HRTO 457 it was stated that the range of monetary compensation for disability-related discrimination involving termination of employment is from $10 000 to $20 000. In this case “an award at the lower end of the range would be appropriate in the present case. Having regard to all of the circumstances, I find an award of $12,000 to be appropriate compensation for the impact of the discriminatory termination of the applicant’s employment on his dignity, feelings and self-respect” (para 79).

Human rights training for Nordock’s supervisors and managers (future compliance) – It was found that Nordock Inc. did not have a human rights policy which addressed the duty to accommodate. “In my view, the respondents could benefit from developing a human rights policy that addresses the duty to accommodate, and from training on the policy. I find that it is appropriate in the circumstances to order that the respondents develop a human rights policy, and implement training on the policy” (para 81).

1. Within 30 days of the date of this Order, the respondents shall pay the applicant $12,000.00 for injury to dignity, feelings and self-respect;

2. Pre-judgment interest is payable on the above amount from May 20, 2011, to the date of this Decision, in accordance with the Courts of Justice Act. Post-judgment interest is payable on any amount not paid within 30 days of the date of this Decision, in accordance with the Courts of Justice Act;

3. Within 120 days of the date of this Order, the respondents shall, at their own expense:

(i) develop and implement a workplace human rights (anti-discrimination and anti-harassment) policy, that includes the duty to accommodate in the workplace, and distribute the policy to all supervisors, management and staff;

(ii) provide a mandatory human rights training program about human rights and, in particular, the duty to accommodate, for all supervisors, management and staff who perform supervisory and/or human resources functions; and,

4. Within 130 days of the date of this Order, the respondents shall confirm to the applicant’s representative in writing that the steps set out in paragraph 3 of this Order have been complied with.